THE RETALIATION CLAIMTHE RETALIATION CLAIM

A Legal Minefield A Legal Minefield

For EmployersFor Employers

A Legal Minefield A Legal Minefield

For EmployersFor Employers

Retaliation ClaimsRetaliation Claims

A A favoritefavorite new employee claim new employee claim EEOC filings up dramatically EEOC filings up dramatically Included in 1/3 of all discrimination Included in 1/3 of all discrimination

suitssuits A “high risk” exposure for employersA “high risk” exposure for employers

A A favoritefavorite new employee claim new employee claim EEOC filings up dramatically EEOC filings up dramatically Included in 1/3 of all discrimination Included in 1/3 of all discrimination

suitssuits A “high risk” exposure for employersA “high risk” exposure for employers

Understanding the Retaliation ClaimUnderstanding the Retaliation Claim

““10 Questions”10 Questions”““10 Questions”10 Questions”

1. “Retaliation” Law – What Is It About?

1. “Retaliation” Law – What Is It About?

Protection for an employee who Protection for an employee who complains about or opposes complains about or opposes illegal employer activitiesillegal employer activities

Protection for an employee who Protection for an employee who complains about or opposes complains about or opposes illegal employer activitiesillegal employer activities

2. Retaliation Claims – What Legal Basis?2. Retaliation Claims – What Legal Basis?

Federal lawFederal law Title VII, Civil Rights Act of 1964Title VII, Civil Rights Act of 1964 Other Civil Rights Laws – ADA, Other Civil Rights Laws – ADA,

ADEA, FLSA, FMLA, OSHAADEA, FLSA, FMLA, OSHA Federal Claims Act and Whistleblower Federal Claims Act and Whistleblower

Protection ActProtection Act First amendmentFirst amendment, , U.S. ConstitutionU.S. Constitution

Federal lawFederal law Title VII, Civil Rights Act of 1964Title VII, Civil Rights Act of 1964 Other Civil Rights Laws – ADA, Other Civil Rights Laws – ADA,

ADEA, FLSA, FMLA, OSHAADEA, FLSA, FMLA, OSHA Federal Claims Act and Whistleblower Federal Claims Act and Whistleblower

Protection ActProtection Act First amendmentFirst amendment, , U.S. ConstitutionU.S. Constitution

2. Legal Basis (cont) State lawState law

Workers’ Compensation LawsWorkers’ Compensation Laws Whistleblower StatutesWhistleblower Statutes Miscellaneous LawsMiscellaneous Laws

Statutory “right to complain”Statutory “right to complain” Focus of discussion – Title VIIFocus of discussion – Title VII

3. What Are Protected Activities?3. What Are Protected Activities?

““Participation” activitiesParticipation” activities Filing a claim with EEOC or in court Filing a claim with EEOC or in court Assisting with EEOC or court Assisting with EEOC or court

proceedingproceeding (providing information or (providing information or testimony)testimony)

Advising another employee re rightsAdvising another employee re rights Narrow (covers few activities) but deep Narrow (covers few activities) but deep

(absolute) protection(absolute) protection

““Participation” activitiesParticipation” activities Filing a claim with EEOC or in court Filing a claim with EEOC or in court Assisting with EEOC or court Assisting with EEOC or court

proceedingproceeding (providing information or (providing information or testimony)testimony)

Advising another employee re rightsAdvising another employee re rights Narrow (covers few activities) but deep Narrow (covers few activities) but deep

(absolute) protection(absolute) protection

4. Any Activities Protected Beyond Filing Claim/Suit?4. Any Activities Protected Beyond Filing Claim/Suit?

““Opposition” activitiesOpposition” activities Protesting/complaining about discrimination Protesting/complaining about discrimination Refusing to carry out unlawful orderRefusing to carry out unlawful order Opposition to activity of co-workerOpposition to activity of co-worker Opposing discrimination outside workplaceOpposing discrimination outside workplace

Broad (covers many activities) but shallow (less Broad (covers many activities) but shallow (less absolute) protectionabsolute) protection

““Opposition” activitiesOpposition” activities Protesting/complaining about discrimination Protesting/complaining about discrimination Refusing to carry out unlawful orderRefusing to carry out unlawful order Opposition to activity of co-workerOpposition to activity of co-worker Opposing discrimination outside workplaceOpposing discrimination outside workplace

Broad (covers many activities) but shallow (less Broad (covers many activities) but shallow (less absolute) protectionabsolute) protection

EMPLOYER ACTIONEMPLOYER ACTION Alleged act of Alleged act of

discriminationdiscrimination

EMPLOYER ACTIONEMPLOYER ACTION Alleged act of Alleged act of

discriminationdiscrimination EMPLOYEE EMPLOYEE RESPONSERESPONSE ParticipationParticipation OppositionOpposition

EMPLOYEE EMPLOYEE RESPONSERESPONSE ParticipationParticipation OppositionOpposition

5. What Employer Actions Amount to Retaliation?5. What Employer Actions Amount to Retaliation?

““Ultimate actions” onlyUltimate actions” onlyPosition of several circuitsPosition of several circuitsInvolves hiring, promoting, firing, Involves hiring, promoting, firing,

determining compensationdetermining compensation““Employer-friendly” positionEmployer-friendly” position

““Ultimate actions” onlyUltimate actions” onlyPosition of several circuitsPosition of several circuitsInvolves hiring, promoting, firing, Involves hiring, promoting, firing,

determining compensationdetermining compensation““Employer-friendly” positionEmployer-friendly” position

5. Employer Actions - Retaliation? (cont)5. Employer Actions - Retaliation? (cont)

““Material adverse change in Material adverse change in employment terms”employment terms”

Rule for most circuitsRule for most circuitsMay involveMay involve demotion, reprimand, demotion, reprimand,

negative job evaluation or reference, negative job evaluation or reference, refusal to grant normal benefits or refusal to grant normal benefits or office privileges, disadvantageous office privileges, disadvantageous transfer, harassment, countersuittransfer, harassment, countersuit

More “employee friendly” positionMore “employee friendly” position

““Material adverse change in Material adverse change in employment terms”employment terms”

Rule for most circuitsRule for most circuitsMay involveMay involve demotion, reprimand, demotion, reprimand,

negative job evaluation or reference, negative job evaluation or reference, refusal to grant normal benefits or refusal to grant normal benefits or office privileges, disadvantageous office privileges, disadvantageous transfer, harassment, countersuittransfer, harassment, countersuit

More “employee friendly” positionMore “employee friendly” position

5. Employer Actions – Retaliation? (cont)5. Employer Actions – Retaliation? (cont)

EEOC position: any action that may EEOC position: any action that may deter employee from exercising rightsdeter employee from exercising rights Most “employee-friendly” positionMost “employee-friendly” position Few courts have adoptedFew courts have adopted

Some (few) types of unfavorable Some (few) types of unfavorable treatment fall short of retaliationtreatment fall short of retaliation

EEOC position: any action that may EEOC position: any action that may deter employee from exercising rightsdeter employee from exercising rights Most “employee-friendly” positionMost “employee-friendly” position Few courts have adoptedFew courts have adopted

Some (few) types of unfavorable Some (few) types of unfavorable treatment fall short of retaliationtreatment fall short of retaliation

EMPLOYER ACTIONEMPLOYER ACTION Alleged act of Alleged act of

discriminationdiscrimination

EMPLOYER EMPLOYER RESPONSERESPONSE Adverse ActionAdverse Action

EMPLOYER ACTIONEMPLOYER ACTION Alleged act of Alleged act of

discriminationdiscrimination

EMPLOYER EMPLOYER RESPONSERESPONSE Adverse ActionAdverse Action

EMPLOYEE EMPLOYEE RESPONSERESPONSE ParticipationParticipation OppositionOpposition

RETALIATIONRETALIATION

EMPLOYEE EMPLOYEE RESPONSERESPONSE ParticipationParticipation OppositionOpposition

RETALIATIONRETALIATION

6. Discrimination Claim Fails – Status of Retaliation Claim?6. Discrimination Claim Fails – Status of Retaliation Claim? Judicial view: retaliation claim may Judicial view: retaliation claim may

still succeed - “right to be wrong”still succeed - “right to be wrong” A not infrequent outcomeA not infrequent outcome Evidentiary and “human nature” Evidentiary and “human nature”

differences in two types of claimsdifferences in two types of claims

Judicial view: retaliation claim may Judicial view: retaliation claim may still succeed - “right to be wrong”still succeed - “right to be wrong”

A not infrequent outcomeA not infrequent outcome Evidentiary and “human nature” Evidentiary and “human nature”

differences in two types of claimsdifferences in two types of claims

7. What About the “Preemptive Strike” Employee Strategy?7. What About the “Preemptive Strike” Employee Strategy?

Applies only to “opposition” claimsApplies only to “opposition” claims Strategy: Anticipating adverse action, Strategy: Anticipating adverse action,

employee presses discrimination claim; employee presses discrimination claim; then cries “retaliation” when adverse then cries “retaliation” when adverse action administered by employeraction administered by employer

The legal reality: The legal reality: Employee must have good faith belief that Employee must have good faith belief that

discrimination occurred; anddiscrimination occurred; and This belief must be objectively reasonableThis belief must be objectively reasonable

Applies only to “opposition” claimsApplies only to “opposition” claims Strategy: Anticipating adverse action, Strategy: Anticipating adverse action,

employee presses discrimination claim; employee presses discrimination claim; then cries “retaliation” when adverse then cries “retaliation” when adverse action administered by employeraction administered by employer

The legal reality: The legal reality: Employee must have good faith belief that Employee must have good faith belief that

discrimination occurred; anddiscrimination occurred; and This belief must be objectively reasonableThis belief must be objectively reasonable

8. Are There Limits on anEmployee’s Opposition Activities?

8. Are There Limits on anEmployee’s Opposition Activities?

Illegal conduct not protectedIllegal conduct not protected Lawful but “objectionable” actionsLawful but “objectionable” actions

Violation of policyViolation of policy Disruptive activitiesDisruptive activities Communication with external partiesCommunication with external parties

Usually protectedUsually protected “ “Loyalty” argument by employerLoyalty” argument by employer

Judicial rule of “reasonableness” appliedJudicial rule of “reasonableness” applied

Illegal conduct not protectedIllegal conduct not protected Lawful but “objectionable” actionsLawful but “objectionable” actions

Violation of policyViolation of policy Disruptive activitiesDisruptive activities Communication with external partiesCommunication with external parties

Usually protectedUsually protected “ “Loyalty” argument by employerLoyalty” argument by employer

Judicial rule of “reasonableness” appliedJudicial rule of “reasonableness” applied

9. Who Can Claim Protection from Retaliation?9. Who Can Claim Protection from Retaliation? The victim The victim A protesting employee who is not a A protesting employee who is not a

victimvictim A protesting employee who is not in a A protesting employee who is not in a

protected classprotected class A protesting employee who is related A protesting employee who is related

to or associated with the victimto or associated with the victim A former employeeA former employee

The victim The victim A protesting employee who is not a A protesting employee who is not a

victimvictim A protesting employee who is not in a A protesting employee who is not in a

protected classprotected class A protesting employee who is related A protesting employee who is related

to or associated with the victimto or associated with the victim A former employeeA former employee

10. How to Avoid Liability?10. How to Avoid Liability? Have clear anti-retaliation policyHave clear anti-retaliation policy Inform and train work force about policyInform and train work force about policy Follow a “zero tolerance” approach for Follow a “zero tolerance” approach for

retaliatory actionsretaliatory actions Understand breadth of “protected Understand breadth of “protected

activities” and “adverse action” under activities” and “adverse action” under the lawthe law

Have clear anti-retaliation policyHave clear anti-retaliation policy Inform and train work force about policyInform and train work force about policy Follow a “zero tolerance” approach for Follow a “zero tolerance” approach for

retaliatory actionsretaliatory actions Understand breadth of “protected Understand breadth of “protected

activities” and “adverse action” under activities” and “adverse action” under the lawthe law

10. How to Avoid Liability? (cont)10. How to Avoid Liability? (cont) Forward all discrimination complaints to Forward all discrimination complaints to

HR for proper management and HR for proper management and monitoringmonitoring

Handle retaliation complaint as separate Handle retaliation complaint as separate grievance grievance

Endeavor to carry on “business as usual” Endeavor to carry on “business as usual” in dealing with complaining employeein dealing with complaining employee

Forward all discrimination complaints to Forward all discrimination complaints to HR for proper management and HR for proper management and monitoringmonitoring

Handle retaliation complaint as separate Handle retaliation complaint as separate grievance grievance

Endeavor to carry on “business as usual” Endeavor to carry on “business as usual” in dealing with complaining employeein dealing with complaining employee

10. How to Avoid Liability? (cont)10. How to Avoid Liability? (cont) Follow common sense guidelinesFollow common sense guidelines

Check for unquestioned non-retaliatory Check for unquestioned non-retaliatory reasonreason

Be consistent with institutional and Be consistent with institutional and departmental policydepartmental policy

Be consistent with treatment of other Be consistent with treatment of other employeesemployees

Be consistent with past treatment of Be consistent with past treatment of employeeemployee

Scrutinize timingScrutinize timing

Follow common sense guidelinesFollow common sense guidelines Check for unquestioned non-retaliatory Check for unquestioned non-retaliatory

reasonreason Be consistent with institutional and Be consistent with institutional and

departmental policydepartmental policy Be consistent with treatment of other Be consistent with treatment of other

employeesemployees Be consistent with past treatment of Be consistent with past treatment of

employeeemployee Scrutinize timingScrutinize timing

10. How to Avoid Liability? (cont)10. How to Avoid Liability? (cont)

Document Document Carefully evaluate continuation of Carefully evaluate continuation of

internal grievance process after internal grievance process after external claim filedexternal claim filed

Always consult HR and legal personnelAlways consult HR and legal personnel

Document Document Carefully evaluate continuation of Carefully evaluate continuation of

internal grievance process after internal grievance process after external claim filedexternal claim filed

Always consult HR and legal personnelAlways consult HR and legal personnel

““You cannot get ahead while you are You cannot get ahead while you are getting even.” Dick Armeygetting even.” Dick Armey

““Mankind must evolve for all human Mankind must evolve for all human conflict a method which rejects revenge, conflict a method which rejects revenge, aggression, and retaliation. The foundation aggression, and retaliation. The foundation of such a method is love.” Martin Luther of such a method is love.” Martin Luther KingKing